IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100415

Docket:
M94980

Registry: New Westminster

Between:

Gurdeep
Singh Gill, an infant by his Guardian Ad Litem

Piar
Gill and the said Piar Gil

Plaintiff

And

Lyle
James Morin

Defendant

And

Piar Gill and Gurcharan Singh Gill

Third Party

Before: The Honourable Master Keighley

Reasons for Judgment

[1]            
On June 4, 2004, 11 year old Gurdeep Singh Gill
(“Gurdeep”) was grievously hurt when the all terrain vehicle he was then
operating, of a type commonly described as a “quad”, struck or was struck by a
car driven by the defendant, Lyle James Morin (“Morin”) on Harris Road in
Abbotsford. The gravity of Gurdeep’s injuries was such that he was flown from
the accident scene by helicopter. He suffered numerous fractures, including a
compound fracture of the femur and a skull fracture. The Statement of Claim
alleges that he has been left with hearing loss, balance problems and cognitive
deficits.

[2]            
Gurdeep’s Statement of Claim issued October 21,
2005 names his mother, Piar Gill (“Piar”) as his guardian ad litem. Morin’s
Statement of Defence issued March 29, 2006 denies liability and alleges
negligence on Gurdeep’s part in the operation of the quad and on the parts of
his parents for their alleged failure to adequately supervise their son.

[3]            
On August 1, 2007 Morin issued a Third Party
Notice against Piar and her husband, Gurcharan Singh Gill (“Gurcharan”) seeking
contribution and indemnity for the amount of any judgment which Gurdeep might
be granted against him.

[4]            
The issuance of the Third Party Notice placed
Piar in a position of conflict: she could not continue to act as litigation
guardian for her son while defending against Morin’s third party claim. A
dialog then began between her counsel, Mr. Gautam and staff at the office
of the Public Guardian and Trustee (“PGT”) concerning the removal of Piar as
litigation guardian and a possible replacement by the PGT. The PGT was, and
remains, unwilling to assume the role unless insulated from any claim for
costs.

[5]            
In the meantime, counsel agreed on severance of
the liability and quantum components of the claim and a trial on the issue of
liability only was scheduled for March 2, 2009. Due to the ongoing discussions
between Mr. Gautam and the PGT that trial date was adjourned by consent
and the trial relating to liability only has now been rescheduled for July 12,
2010, for five days.

The Application

[6]            
On the application before me, Piar and Gurcharan
apply for the following orders:

1.       An
order removing Piar as guardian ad litem;

2.       An
order that the PGT be appointed in her place;

3.       Alternatively, an order generally adjourning the liability
portion of the trial scheduled to proceed on July 12, 2010;

4.       Costs.

[7]            
Counsel for the plaintiff, although not present,
supports the application, including the alternative relief. The PGT opposes
paragraph 2 but not paragraphs 1 and 3. Counsel for Morin opposes paragraphs 3
and 4, but not paragraphs 1 and 2.

The Role of Guardian Ad Litem

[8]            
Rule 6(2) of the Rules of Court reads as
follows:

A person under
legal disability shall commence or defend a proceeding by his or her litigation
guardian.

[9]            
Thus a person under a legal disability may not
sue or be sued rather than through a litigation guardian who is obliged to
manage the litigation and is available to pay costs. The expression “a person
under legal disability” is not specifically defined to include an infant, but
from other provisions of the Rule it can be said to include infants. Rules
6(10), (10.1), and (11) read as follows:

(10)      If
it is in the interest of a party who is under disability, the court may remove,
appoint or substitute a litigation guardian.

(10.1)   A
party to a proceeding who attains the age of majority may, if the party is then
under no legal disability, file an affidavit confirming the attainment of the
age of majority, in Form 4.1, and deliver a copy of that affidavit to all
parties of record.

(11)      A party shall
not take a step in default against a person under disability without leave of
the court.

[10]        
Piar recognizes that she is unable to continue
as litigation guardian and has canvassed her relatives and those of her husband
in the hope of finding someone to replace her. She has not been successful.

PGT as Litigation Guardian

[11]        
Section 7 of the Public Guardian and Trustee
Act, R.S.B.C. 1996, c. 383 [Public Guardian and Trustee Act],
reads as follows:

7(1)      If
appointed under a court order or enactment as guardian of the estate of a young
person, the Public Guardian and Trustee is a trustee of all property that comes
into the control of, or is held by, the Public Guardian and Trustee on behalf
of the young person.

(2)        If
guardian of the estate of a young person, the Public Guardian and Trustee may
act as litigation guardian for the young person in making or defending claims
brought for or against the young person as the Public Guardian and Trustee
considers advisable and in the young person’s best interests.

(3)        If a
litigation guardian is required for a young person under the Court Rules Act
and is not otherwise provided for by the Infants Act, the Public Guardian and
Trustee must act as litigation guardian for the young person if the Public
Guardian and Trustee considers it is in the young person’s best interests to do
so.

[12]        
Mr. Gautam, counsel for Piar and Gurcharan,
says that s. 7(3) is mandatory and relies on the decision of Joyce J.
in the case of Kea v. Blake, 2002 BCSC 424. In that case, the real issue
before the court was whether the PGT was entitled as a condition of its acting
as guardian for the infant defendant to an order that its costs be paid
as special costs in any event of the cause. The plaintiff was the owner of real
property located in Mission, B.C. Sometime prior to August 2001 he had
befriended the defendant, an infant and transferred his real property into the
names of himself and the infant as joint tenants. Subsequently the plaintiff
had a change of heart and asked the infant defendant to re-convey her interest
in the property to him. She declined. The plaintiff then transferred his
remaining half interest in the property to himself and another as tenants in
common in order to sever his joint tenancy with the defendant. Some two months
later he commenced this action seeking to recover his one half interest in the
property from the infant defendant and brought an application before
Joyce J. seeking the appointment of the PGT as litigation guardian in
order that he might proceed with the litigation. Joyce J. considered the
provisions of s. 7(3) of the Public Guardian Trustee Act as well as
s. 10 of the Infants Act, R.S.B.C. 1996, c. 223 [Infants
Act], which provides as follows:

The court may direct that the costs of

(a)        a proceeding commenced by the
Public Guardian and Trustee, or

(b)        a
proceeding in which it is necessary or expedient for the Public Guardian and
Trustee to attend

be taxed and
paid either out of the estate of the infant or by any other person who is a
party to the proceeding.

[13]        
As in the case at bar, there appeared to be no
person qualified or willing to act as litigation guardian.

[14]        
Joyce J. determined that in the
circumstances, the PGT should be appointed. As to the position of the PGT that
it was only prepared to act if the plaintiff was willing to pay its
costs, he said at paras. 19-20:

[19]      In
my view, the position taken on behalf of the Public Guardian and Trustee is at
best premature. If the defendant is successful in the action she will remain
the owner of a half interest in real property that has significant value
($45,000 according to the transfer). In addition, the defendant will likely be
entitled to costs from the plaintiff. The Public Guardian and Trustee may then
seek recovery of its expenses from the defendant’s estate in accordance with
s.10 of the Infants Act.

[20]      It is only if
the defendant is unsuccessful that the Public Guardian and Trustee would not be
able to seek recovery of its expenses from the defendant’s estate. The Public
Guardian and Trustee suggests that the plaintiff be required to assume
liability for the costs of the Public Guardian and Trustee as a condition of
being able to pursue his claim, even if that claim is ultimately successful.
Not only would the plaintiff have to pay the costs of the unsuccessful party,
he would have no control over those costs except to the extent of being able to
have them taxed by the Registrar at the end of the day.

[15]        
Ultimately Joyce J. determined that
s. 7(3) imposed a duty on the PGT to act on behalf of the infant even
where the PGT might not be successful in recovering the costs of its
representation.

Position
of the PGT

[16]        
Mr. Mazzone on behalf of the PGT points out
that the infant is presently 17 years of age. He will attain the age of
majority on February 2, 2012. Mr. Mazzone says that there was no evidence
that the infant cannot decide when he becomes an adult whether he wishes to
proceed with this litigation. Neither, he says, is there any evidence that such
a delay would be prejudicial to the defendant. Mr. Mazzone suggests that
an appropriate disposition would be the adjournment of the trial and a stay of
proceedings until the infant plaintiff attains the age of majority.

[17]        
There is some authority for such a disposition.
In the case of Howe v. Vancouver (City), (1957) 22 W.W.R. 385, 9 D.L.R.
(2d) 78 (B.C.S.C.). The infant’s father, as litigation guardian, wished to
discontinue the action or consent to its dismissal and the defendant was
willing to forego any claim for costs in the event the matter was so resolved
prior to trial.

[18]        
The court noted that it did not have the power
to compel the father to proceed against his will with the son’s lawsuit. The court
concluded that even if it had such power it would not be inclined to exercise
it, thereby compelling the father to risk his family home and other moderate
possessions or assets upon the uncertain outcome of possibly prolonged and
expensive litigation. The court also suggested that it did not seem to be in
the best interests of the infant plaintiff to have the infant represented by a
“next friend” who was less than enthusiastic with the prospects of the lawsuit.

[19]        
The court determined that it was appropriate to
remove the father as litigation guardian but then considered who should act for
the infant plaintiff. The court stated at para. 15:

Before a new
next friend could be appointed the written authority of such person expressing
his willingness to act in such a capacity would require to be filed. The court
certainly possesses no authority to appoint a next friend against his will.

[20]        
The court continued at para. 16:

I fully
appreciate that the order which I have decided to make herein will not be acceptable
to the defendant corporation whose officials will justifiably complain of
prejudice to its defence by a long delay. I can see no other way out of my
difficulty, however, than to refuse defendant’s present application for
dismissal of the infant plaintiff’s action and also to deny the next friend’s
request for approval of the settlement or compromise of the infant plaintiff’s
claim upon the basis suggested. In the result (and subject to such directions
as I sincerely hope will be made by the Court of Appeal in this matter) the
action will be stayed until (a) the next friend decides to proceed, or (b)
another next friend consents to act and the Court appoints him in the place and
stead of the present next friend upon application made for that purpose, or (c)
the infant plaintiff attains his majority and has capacity to continue the
action in his own name.

[21]        
In the case of Rothwell v. Scruton, 21
February 1997, Vancouver CA020788 (B.C.C.A.), a father had commenced an action
on behalf of himself and two infant children with respect to the death of his
spouse by alleged medical negligence. Just prior to the commencement of the
trial, plaintiff’s counsel recommended dismissal of the claim with costs as a
result of what he perceived as the weakness in the plaintiff’s case on
liability and causation. The PGT would not consent to, or approve, a settlement
on that basis and the father applied under s. 32 of the Infants Act
for approval of the proposed settlement and an order directing the PGT to
proceed with the action on behalf of the infants. The trial judge accepted the
submissions of the PGT and stayed the proceedings until the youngest infant
reached the age of 19.

[22]        
On an application for leave to appeal, the
British Columbia Court of Appeal referred to the decision of Howe and
concluded that the chambers judge had made no error in principal.

[23]        
In the case of Oliver v. Branch et al,
1999 BCCA 330 the PGT appealed an order that the action be stayed for one month
on the condition that in event the litigation guardian (the infant’s mother)
had not retained counsel to take conduct of the action by the appointed time,
the PGT was to forthwith appoint counsel to act for the litigation guardian on
behalf of the infant.

[24]        
Southin J.A., writing for the court, stated
at para. 9:

I do not
consider that it is appropriate for the Court to order the Public Trustee to
appoint a solicitor to act for a guardian ad litem unless that is done with the
consent of the guardian ad litem.

[25]        
She went to say at para. 10:

We are aware
that if this appeal is allowed, as it is going to be, and the action is stayed,
the defendants may have this litigation about their necks insofar as the
Guardian ad Litem’s claim is concerned until Tarryn Oliver turns 19 in the year
2001.  But although it is a nuisance to the defendants, it will not do them any
particular harm.  We are not dealing with a situation where, for instance, the
important witnesses are all at death’s door or anything of that kind.  There
might be some different considerations if that were so.

[26]        
In the result, the court ordered the proceeding
to be stayed until the infant obtained the age of 19.

[27]        
The case of Blue v. The Corporation of the
Township of Esquimalt et al., 2004 BCSC 1241 was a lawsuit commenced by the
mother of an infant as litigation guardian for her son as a result of a
significant head injury he had suffered in a fall. After commencing the
litigation, the mother stopped providing instructions to the law firm she had
retained and apparently resolved to move herself and her son to France.

[28]        
The law firm applied to court for an order that
it was no longer counsel of record, and in the alternative for an order
removing the litigation guardian and appointing the PGT in her place. Counsel
also sought, in the alternative, that should the PGT not be appointed
litigation guardian, there be a stay of the action until the infant reached the
age of majority.

[29]        
The court noted the provisions of s. 7(3)
of the Public Guardian and Trustee Act and accepted the proposition that
a court had no statutory authority to appoint the PGT as litigation guardian in
the circumstances. It does not appear that Key was cited to the court.

[30]        
Wedge J. noted that a similar but not
identical statutory regime exists regarding disabled adults who require a
litigation guardian. She noted that in Marits v. Wolber, [1997]
B.C.J. No. 278 (B.C.C.A.) the court of appeal concluded that there was no
authority to appoint the PGT, in the absence of its consent, as litigation
guardian for an incapable adult. The court concluded that the best course of
action was to enter a stay of proceedings until the infant attained the age of
majority. At paras. 14-16 of the decision, Wedge J. said as follows:

14.       The
Court has broad powers under its inherent jurisdiction to do “all that is necessary
to do justice between the parties” (Glover v. Glover et al (No. 7)
(1980), 29 O.R. (2d) 392 (C.A.).  However, this is a common law power that
must be considered in light of statutory authority.  Without deciding
whether the Court has the authority to appoint the PGT litigation guardian of
an infant in the absence of the PGT’s consent, I accept that in the
circumstances of this case the PGT has exercised its discretion as contemplated
by s. 7(3) of the Act in declining to consent to its appointment.

15. It is most unlikely the PGT would be able to retain counsel to act
in this case. The PGT does not have funding available to finance claims for
impecunious plaintiffs and, as noted earlier, must enter into contingency fee
arrangements for the prosecution of meritorious personal injury claims. At this
point in time, as a result of Ms. Blue’s lack of cooperation, it is not
possible to assess the merits of the case. The only information available is
anecdotal in nature.

16. I accordingly
accept that in the circumstances of this case, the course that will best serve
William’s interests is a stay of the action. I have been referred to a number
of cases in which similar orders have been made.

The Defendant Morin’s Position

[31]        
Ms. Hall, on behalf of the defendant Morin,
says that her client, who disputes liability for the accident, will be
significantly prejudiced by the delay which would attend a stay. Evidence of
witnesses will become less reliable she says, and her client will have this
litigation “about his neck” for many years yet to come.

[32]        
It is indeed regrettable that this defendant,
who may eventually be found to be blameless with respect to this accident, may
be obliged to wait several more years for the issues of liability and perhaps
quantum to be resolved, but in the absence of any specific evidence, I am not
prepared to find that the defendant is prejudiced by a stay of this action
until the plaintiff obtains the age of majority. The limitation for this cause
of action will not begin to run against the infant plaintiff until he reaches
the age of majority on February 2, 2012 and it seems to be the defendant is no
more prejudiced by a stay of proceedings then he would be had the plaintiff
waited until then to commence this action.

Result

[33]        
In the result then, Piar will be removed as
litigation guardian forthwith. The third party’s application to appoint the PGT
as litigation guardian is dismissed. The action will be stayed until the infant
plaintiff reaches the age of majority. Should counsel be unable to resolve the
issue of costs, that issue may be brought back before me.

“Master Keighley”